Lavv, or, a discourse thereof in foure bookes. Written in French by Sir Henrie Finch Knight, his Maiesties Serieant at Law. And done into English by the same author.

CHAP. 4.

Of Discontinuance.

HItherto of Trespasses vpon the Case.

A reall wrong is that which medleth with the Freehold other∣wise than it ought: and is a Dis∣continuance, or Ouster.

Discontinuance, when he that hath an estate Taile, or Fee-simple in anothers right, As the husband in right of his wife. A Deau sole seised in the right of his dean∣rie: Deane and Chapter, Gardeine, and Chapleines; as also Maior, and com∣minaltie of lands in the right of their Cor∣poration. maketh a larger estate of the land than he may. As by a Fine or feoffement for life of the lessee, in taile or in fee, which is called a discontinuance. But the Graunt of a rent, release, or confirmation to a lessee for yeres in fee, make no discontinuance, for they passe without liuerie, and there∣fore passe no greater estate than the Graun∣tor had.

Statutes.

32. H. 8. cap. 28. All Leases by deed in∣dented for life or yeares, by any person of full age, hauing an estate in fee or in fee∣taile, in his owne right, or in the right of his Church, or wife, or ioyntly with his wife, shall be perfectly good.

This extendeth not to Leases of land in the hands of any farmour, by vertue of a∣ny old Lease, vnlesse the same bee expired surrendred or ended within a yeare after the making of a new; nor to the grant of any reuersion, nor to any lease of land which hath not most commonly beene let, or occupied in farme by the space of xx. yeares next before, nor to any lease made without impeachment of Wast, or made for aboue xx. yeares, or three liues from the day of making. And that there bee reser∣ued yearely payable to the lessours, their heires and successours, according to their estates, the rent accustomably yeelded within twentie yeres next before: which heires and successors shall haue the like ad∣uantage against the Lessees, their execu∣tors and assignes, as the Lessor himselfe might. Prouided the wife bee made party to euerie lease by the husband of any land of her inheritance The Lease to be made by Indenture in both their names, and shee to seale the same, and the rent to bee reser∣ued to the husband and wife, and her heirs,

according to her estate of inheritance.

13. Eliz Cap 10. All grants, Feoffe∣ments, Leases, and other conueyances and estates, by any Master or Fellows of a Col∣ledge, Deane and Chapter, Master or Gar∣dein of an Hospitall, Parson, Vicar, &c. other than for xxj years, or three liues, from the time of such lease or grant, reseruing the accustomable yearely rent, yearely pay∣able, shall be void.

14. Eliz Cap. 11. The Statute 13. Eliz. Cap. 10. before, shall not extend to grant assurance, or lease of anie house in Citie, Borough, Towne corporate, or Market towne, or within the Suburbs, (the same not being their dwelling house, or hauing aboue ten acres of ground belonging to it.) Prouided the lease shall not be made in re∣uersion, and the accustomed yeerely rent shall be reserued, the Lessees charged with reparations, and it shall not bee aboue for∣ty yeares. No alienation shall be of such houses, vnlesse that presently vpon such ali∣enation there be an absolute purchase in fee simple of other Lands of as great value.

18. Eliz. Cap. 11. All leases made by such persons (as 13. Eliz. Cap. 10. before) where another lease for yeares is in being, not to bee expired, surrendred, or ended within three yeares next after the making of such new lease shall be void. All bonds

& couenants for renewing or making of any lease, contrarie hereunto, or to 13. Eiz. Cap. 10. before, shall be void.

1. Eliz. not printed, the like (as 13. Eliz. Cap. 10. before) for Archbishops and Bi∣shops, vnlesse it bee of estates made to the King, his heires and successors.

32. H. 8: cap. 28. No fine, feoffement, or other Act by the husband onely, of any land being the inheritance or free-hold of the wife, shal be a discontinuance or preiu∣dicial to the wife, or such as haue interest after her death: leases within the compasse of this Statute onely except.

Warrantie of an estate of inheritance, or for life, descending vpon him that ought to haue such estate, maketh a discontinuance. As if tenant in Taile of an Aduowson in grosse, suffer an vsurpation by six months, the release of a colateral ancestor with war∣rantie is a discontinuance, for hee hath fee by the vsurpation.

So it seemeth of a collateral ancestors re∣lease, with warrantie to the Grantee in fee of a rent or aduowson in grosse by Tenant in Taile. But if Tenant in Taile of a rent or aduowson in grosse grant it in fee, with warrantie; this is no discontinuance, but at the pleasure of the issue.

Discontinuance taketh away the en∣trie of those that come to haue title af∣ter his death. If he (whose entrie is

barred by a discent or discontinuance) haue the freehold cast vpon him by a new title, he shal be in of his anciēt title: which is ter∣med a remitter. As if the heire of the dissei∣sor * 1.1 (in by discēt) make a lease for life to I. S. the remainder for life or in fee to the dissei∣see, if Tenant in Taile discontinue, & then * 1.2 disseise the discontinue, & die seised, where∣by the lands discends to his issue; if the hus∣band make a feoffement in fee of land in * 1.3 the right of his wife, and take backe an estate in fee to him and his wife. In these cases the disseisee after the death of I. S. the issue in Taile, and the wife suruiuing, her husband is remitted: but if the husband suruiue, her heire is not; for there is ano∣ther tenant of the Freehold, against whom he may bring his Action. And in the case of Tenant in taile before, though the heire of the Discontinue were within age at the time of the discent to the Issue in taile, yet his entrie is gone for eue, r by reason the Is∣sue is remitted.

Notes

• * 1.1

  Lit 152.
• * 1.2

  11. E. 4. 1.
• * 1.3

  21. E. 3. 26.